Flight Centre preparing legal challenge to Covid-19 state border closures

Tourism giant Flight Centre is preparing to mount a legal challenge to internal border closures if Queensland, Tasmania and WA do not reveal ‘reasonable’ plans to rejoin the nation.

Flight Centre boss Graham Turner has warned of legal action over states’ border closure policies. Picture: Lyndon Mechielsen

Tourism giant Flight Centre is prepared to mount a legal challenge against internal border closures if Queensland, Tasmania and Western Australia do not reveal “reasonable” plans to rejoin the nation in coming weeks, accusing the states of costing the company $100m a month.

The threat comes weeks after the premiers were given notice by Attorney-General Michaelia Cash that rising vaccination rates would shift the legal arguments against them after the High Court last year shot down billionaire Clive Palmer’s push to open the West Australian border.

National cabinet will meet on Friday to discuss the path out of the pandemic, but Western Australia, Queensland and Tasmania have not given an assurance they will open their borders once the nation passes the 80 per cent adult vaccination threshold agreed to in the four-step national plan.

Flight Centre chief executive Graham Turner told The Australian on Thursday that his company and a number of other tourism businesses were ready to mount a second legal challenge if WA Premier Mark McGowan, Tasmanian Premier Peter Gutwein and Queensland Premier Annastacia Palaszczuk refused to commit to a reopening strategy.

“Our lawyers do believe the case has actually changed since the Palmer case on whether it is reasonable to keep the borders shut,” he said. “We want to see a reasonable plan from national cabinet this week.

“We expect the state premiers to have a plan and we expect it to be reasonable. If not and the borders stay shut, we don’t have a choice but to challenge.

“We are losing $800m a month’s worth of sales and that makes up about $100m a month in our total revenue.

“We are prepared to mount a challenge ourselves, but we have been talking to quite a few companies if we have to challenge.”

Flight Centre’s prospective legal challenge is the first serious attempt to dismantle Covid-19 state border closures since the High Court upheld Western Australia’s hard border on the grounds it was a proportionate public health response.

Australian Chamber of Tourism chairman John Hart also confirmed on Thursday that Flight Centre’s legal challenge would have support from a number of other businesses.

“The time is fast approaching for a challenge and we’re aware of a number of businesses among our membership that are preparing for such a challenge,” he said. “From the information we have received, we believe the challenge has significant merit and legal basis.”

The legal threat is set to reignite tensions within the national cabinet over when state border closures should lift. The Delta wave – and its subsequent lockdowns and border shutdowns – have halted a major recovery for the domestic tourism sector, and there are fears the situation could worsen.

ACCI Tourism has estimated domestic tourism spending was down 15 per cent on pre-Covid levels in the current September quarter, which has seen NSW, Victoria and the ACT throw their populations into hard lockdowns. The cost to the tourism sector has amounted to $5.6bn a month.

Mr Hart also said the National Visitor Survey figures showed the domestic tourism spend in the June quarter – before the Delta outbreak took hold – had returned to pre-coronavirus levels of $19.6bn. “This is all on top of the 97 per cent downturn in international tourism, which is a loss of $43.6bn per annum or $3.6bn a month.”

Some tourism industry figures are hopeful Queensland will open its borders early in the New Year and avert more economic damage. A High Court challenge could take months to proceed.

Mr McGowan reacted angrily, saying hundreds of people could die if he did not keep his border closing powers.

Senior lawyer for Arnold Bloch Leibler, Leon Zwier, writes in The Australian on Friday that the national plan and rapid vaccination process would tilt the balance of legal arguments towards potential challengers of state border closures.

“Chief Justice Susan Kiefel and Justice Pat Keane endorsed WA’s position with a powerful and prescient statement of the court’s reasoning: ‘There is no known vaccine, and no treatment presently available to mitigate the risks of severe medical outcomes or mortality for a person who contracts COVID-19’,” he says.

“The question … is this: did the High Court deliberately leave the door open to a future challenge as soon as a vaccine was rolled out and other treatments approved?”

National cabinet on Friday is also due to discuss recommendations to introduce mandatory vaccinations for all healthcare workers and to allow vaccinated people to visit aged-care homes.